A possible law school examination “short answer” question on Brown v. Board

A fourth-grade class in Chesterfield County, Virginia was recently asked the following multiple-choice question on a history test:

The United States Supreme Court ruled in 1954 (Brown v. Board of Education) that “separate but equal” ___________ were unconstitutional.

A. water fountains
B. restaurants
C. public schools
D. churches

The right answer to this question is “C.”

A more challenging way to ask this same question would be to make it a “multiple answer, multiple choice” question and require the test-taker to concisely explain his or her answer. What’s the right answer?

The best answer is still “public schools” only, I think. But a good explanation for this answer would have to address why not to include “water fountains,” “restaurants,” and “churches” in the answer. Churches are easy. A violation of the Fourteenth Amendment requires state action and–because the Supreme Court has incorporated the Establishment Clause–there can be no state church. State action does not provide as clean an exclusion for restaurants and water fountains. (See, for example, the Eagle Coffee Shoppe in Wilmington, DE, discussed in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).) It is necessary to examine the scope of Brown itself. The reasoning of Brown is explicitly limited to the context of public schools, which is why “C” is the best answer. But the Court extended Brown to other contexts in a series of summary per curiam opinions after Brown. If one views those cases as required by Brown, rather than as extensions of Brown, then one might have a basis for including “A” and “B.” (One final note: I’m not aware of state-run “separate but equal” restaurants, while there were “separate but equal” water fountains. Even if Brown is best understood to have held unconstitutional all “separate but equal” governmental arrangements (together with Bolling extending its principles to the federal government), the effect may have only been to knock out “separate but equal” public schools and water fountains.)